Donald Trump is halfway through a two-year campaign to defeat the criminal charges against him, but the other half may be more difficult or at least may take longer to carry out. With about six weeks to go before he becomes President again, his legal team this week stepped up their efforts to end the remaining cases quickly.
On Monday, his lawyers mounted a massive constitutional attack, hundreds of pages long, against 24 guilty verdicts reached by a jury in New York state criminal court. Then, on Wednesday, in a brief, five-page challenge, his team argued that there can be no further prosecution on the eight charges he faces in a state case in Georgia – a case that has not yet gone to trial.
The theme of both efforts echoes what the former President has been arguing since he opened his campaign in November 2022 for a new term in the White House. His lawyers contend that the only goal of all of the prosecutions was political, a “witch hunt” specifically intended to defeat him when the voters went to the polls last month.
The newly mounted legal challenges to the state cases rely on (1) his election victory (described as “a powerful national mandate to Make America Great Again”), (2) the sweeping legal immunity that he won from the Supreme Court last summer, and (3) the long-standing constitutional doctrine that national law is supreme.
Trump’s claim of immunity, which his team began making months before the Supreme Court formally ratified it, was notably successful at least in stalling the criminal cases in both federal and state courts. The election victory then finished off the two cases Trump faced in federal courts, without trials.
Because those trials never occurred, the cases ended without a ruling on whether Trump did qualify for immunity in either case. Special prosecutor Jack Smith said he had no choice but to end those cases, because he and his staff were bound by a Justice Department policy that originated in 1973 barring any criminal case against a President while in office. Smith applied that policy to a President-elect, too.
Trump’s legal focus is now on the two remaining cases, in state courts. The one new strategy now being pursued in those cases is bold: that the Constitution’s Article VI is a firm barrier to any state criminal charge against a sitting President. His lawyers contend that Article V – the basic document’s so-called “Supremacy Clause” – requires the immediate dismissal of the New York and Georgia cases.
That clause declares that “this Constitution and the laws of the United States…shall be the supreme law of the land, and the judges in every state shall be bound thereby.”
Of course, that was not at issue in the two federal cases against Trump: Justice Department prosecutors were seeking to enforce federal criminal laws. Trump’s attorneys, however, are trying to persuade the state courts that they, too, must obey the Supreme Court’s immunity decision and must not keep those criminal cases going.
One potential problem with that argument is that the states and the federal government operate separate criminal law enforcement systems, and each is generally free to prosecute the same individual for the very same crime without violating the Constitution’s ban (in the Fifth Amendment) on multiple punishments.
Since Trump is the first President, former or in office, to be prosecuted for a state crime, the Supreme Court has never ruled on whether constitutional immunity applies to state prosecutions. Its July 1 ruling only dealt with federal charges. Moreover, the Justice Department policy that legally insulates a sitting President has no effect on the states.
Thus, it is now up to a state judge in New York, Judge Juan M. Merchan, and to a state appeals court judge in Georgia to react to this new attempt to protect Trump as he prepares to start a new presidential term.
The New York case grows out of state law crimes Trump was charged with committing during his 2016 presidential election campaign, to cover up a sex scandal. The Georgia charges are based on a state anti-racketeering law; Trump is accused of those crimes as part of his effort to overturn his 2020 defeat in that run for the Presidency.
Both cases are a mixture of several legal issues, apart from whether Trump’s prosecution should be stopped immediately.
Judge Merchan has not yet imposed a sentence on Trump for the New York guilty verdicts. That has been on hold awaiting the new immunity claim by Trump’s lawyers. The judge also still has not ruled on an earlier Trump immunity claim, which is separate from the new challenge filed Monday. In addition, Trump has an appeal pending in a federal appeals court, seeking to have the New York case transferred to federal court, where he could defend himself with federal legal arguments. Trump’s latest filing in Merchan’s court tries to wrap all of those questions together, leaving their separate status somewhat in limbo.
If the judge rules against Trump on the immunity issue, his lawyers have asked for time to file a new appeal in state court and, maybe ultimately, in the Supreme Court in Washington.
The Georgia case is now on hold in a state appeals court, which has pending a case on whether the state prosecutor in that case, Fulton County District Attorney Fani Willis, should be removed from further prosecution because of allegedly improper personal and professional conduct. On Wednesday, Trump’s lawyers asked that court to send the entire case back to the trial court, with orders to dismiss it immediately. Willis is also now under a state court order to turn over, for use in a private lawsuit by a legal advocacy group, any correspondence she may have had with federal prosecutor Jack Smith.
It is possible, given the often plodding pace of court proceedings, that Trump could enter office next month with a variety of threatening legal proceedings still hanging over the inauguration of his second term.
